
[Federal Register Volume 78, Number 29 (Tuesday, February 12, 2013)]
[Rules and Regulations]
[Pages 9845-9848]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03208]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 209

[Docket No. FRA-2004-17530, Notice No. 3]
RIN 2130-ZA11


Minimum and Ordinary Maximum and Aggravated Maximum Civil 
Monetary Penalties for a Violation of the Hazardous Materials 
Transportation Laws or Regulations, Orders, Special Permits, or 
Approvals Under Those Laws

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FRA is revising its regulations to reflect amendments to 
certain statutory civil monetary penalty provisions effected by the 
Moving Ahead for Progress in the 21st Century Act (MAP-21), which was 
enacted on July 6, 2012. These statutory amendments became effective on 
October 1, 2012. Pursuant to the Act, FRA is eliminating the minimum 
penalty for other than a training violation and adjusting both the 
ordinary maximum penalty and the aggravated maximum penalty that 
applies when assessing a civil monetary penalty for a violation of the 
Federal hazardous materials transportation laws or a regulation, 
special permit, or approval issued under those laws. FRA is also 
revising references to these minimums and maximums in its civil penalty 
assessment guidelines to conform to these statutory changes.

DATES: Effective Date: This rule is effective February 12, 2013.
    Applicability Date: This final rule applies to all violations of 
the Federal hazardous materials transportation laws or a regulation, 
order, special permit, or approval issued under those laws that occur 
on or after October 1, 2012.

FOR FURTHER INFORMATION CONTACT: Joseph St. Peter, Trial Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel, RCC-12, Mail Stop 10, 1200 New Jersey Ave. SE., 
Washington, DC 20590 (telephone 202-493-6047), joseph.st.peter@dot.gov.

SUPPLEMENTARY INFORMATION:

Amendments to the Statutory Civil Penalty Provisions

    Title III of Division C of MAP-21 (Pub. L. 112-141)--the Hazardous 
Materials Transportation Safety Improvement Act of 2012-revises the 
maximum and minimum civil penalties for violation of Federal hazardous 
materials transportation laws at 49 U.S.C. ch. 51 (Federal hazmat laws) 
or a regulation, order, special permit, or approval issued under the 
Federal hazmat laws (including the regulations at 49 CFR subtitle B, 
chapter I, subchapters A (Hazardous Materials and Oil Transportation) 
and C (Hazardous Materials Regulations)). See Sec. 33010 of MAP-21, 
amending 49 U.S.C. 5123. FRA is revising all references to the maximum 
and minimum civil penalties in its regulations and guidelines in order 
to reflect the following statutory changes:

--The maximum civil penalty was increased from $50,000 to $75,000 for a 
knowing violation and from $100,000 to $175,000 if the violation 
results in death, serious illness or severe injury to any person, or 
substantial destruction of property.
--The minimum civil penalty of $250 was eliminated, except that a 
minimum civil penalty of $450 still applies to a violation related to 
training.

Revisions to Civil Penalty Assessment Guidelines

    FRA's hazardous material transportation enforcement civil penalty 
guidelines are published in appendix B to 49 CFR part 209, to provide 
the regulated community and the general public with information 
concerning the manner in which FRA generally begins its hazmat penalty 
assessment process and the types of information that respondents in 
enforcement cases should provide to justify reduction of proposed 
penalties. These guidelines were first published in the Federal 
Register on July 25, 1996 in response to a request contained in Senate 
Report 103-150 that accompanied the Department of Transportation and 
Related Agencies Appropriations Act of 1994. 61 FR 38644. These 
guidelines are periodically updated, and FRA most recently published 
revisions to them on July 27, 2010, pursuant to the Federal Civil 
Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461, 
note). 75 FR 43840.
    In this final rule, FRA is revising all references to the maximum 
and minimum civil penalties published in appendix B to 49 CFR part 209 
in order to reflect the statutory changes of MAP-21.

Statutory Authority

    This final rule is published under the authority of 49 U.S.C. 5123, 
which provides civil penalties for violations of the Federal hazmat 
laws or a regulation, order, special permit, or approval issued under 
those laws. The hazardous material transportation regulations are 
issued by the Pipeline and Hazardous Materials Safety Administration. 
49 CFR 1.97(b). Responsibility for the enforcement of the Federal 
hazmat laws and regulations primarily in instances where violations 
involve railroads and those entities that ship by rail has been 
delegated to FRA. 49 CFR 1.89(j). This rule revises references in FRA's 
regulations to reflect revisions to the civil penalty provisions in the 
Hazardous Materials Transportation Safety Improvement Act of 2012. The 
amendments to the statutory provisions became effective on October 1, 
2012, and FRA is implementing these amendments within respect to 
violations that occur on or after that date.

Public Participation

    FRA is proceeding to a final rule without providing a notice of 
proposed rulemaking or an opportunity for public comment. Public 
comment is unnecessary because, in making these revisions, FRA is not 
exercising discretion in a way that could be informed by public 
comment. As such, notice and comment procedures are ``impracticable, 
unnecessary, or contrary to the public interest'' within the meaning of 
the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). FRA is issuing 
these revisions as a final rule applicable to all hazardous material 
civil penalty cases under its authority to cite for violations that 
occur on or after October 1, 2012.

Regulatory Impact

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under 
Executive Orders 12866 and 13563. Accordingly, this final rule was not 
reviewed by the Office of Management and Budget

[[Page 9846]]

(OMB). Further, this rule is not a significant regulatory action under 
the Regulatory Policies and Procedures of the DOT because it is limited 
to a ministerial act on which the agency has no discretion. 44 FR 
11034. The economic impact of the final rule is minimal to the extent 
that preparation of a regulatory evaluation is not warranted.

B. Regulatory Flexibility Act and Executive Order 13272

    FRA certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
applies to shippers and carriers of hazardous material and persons who 
manufacture, mark, certify, or sell packagings, containers, and 
packaging components as qualified for use in transporting hazardous 
materials in commerce, some of whom are small entities. However, there 
is no economic impact on any person who complies with the Federal 
hazmat laws and the regulations, orders, special permits, and approvals 
issued under that law.

C. Federalism Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693, 
May 22, 2009). As amended in 2005, 49 U.S.C. 5125(h) provided that the 
preemption provisions in Federal hazmat laws do ``not apply to any * * 
* penalty * * * utilized by a State, political subdivision of a State, 
or Indian tribe to enforce a requirement applicable to the 
transportation of hazardous material.'' Accordingly, this final rule 
does not have any preemptive effect on State, local, or Indian tribe 
enforcement procedures and penalties, and preparation of a federalism 
assessment is not warranted.

D. Compliance With the Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of [$140,800,000 or more (as 
adjusted for inflation)] in any one year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
This final rule will not result in the expenditure, in the aggregate, 
of $140,800,000 or more in any one year by State, local, or Indian 
Tribal governments, or the private sector, and thus preparation of such 
a statement is not required.

E. Environmental Assessment

    There are no significant environmental impacts associated with this 
final rule.

F. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). According to definitions set forth under the 
Executive Order, there will be no significant energy action as a result 
of the issuance of this final rule.

G. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

H. Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule.

I. Privacy Act

    Anyone is able to search the electronic form of any comments or 
other written communications received into any of FRA's dockets, by the 
name of the individual submitting the comment or other written 
communication (or signing the comment or other written communication, 
if submitted on behalf of an association, business, labor union, etc.). 
See http://www.regulations.gov/#!privacyNotice for the privacy notice 
of regulations.gov, or you may review DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (65 FR 
19477).

List of Subjects in 49 CFR Part 209

    Administrative practices and procedures, Hazardous materials 
transportation, Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Final Rule

    In consideration of the foregoing, chapter II, subtitle B of title 
49 of the Code of Federal Regulations is amended as follows:

PART 209--[AMENDED]

0
1. The authority citation for part 209 is revised to read as follows:

    Authority: 49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 
20114; 28 U.S.C. 2461, note; and 49 CFR 1.89.


0
2. Revise Sec.  209.103 to read as follows:


Sec.  209.103  Minimum and maximum penalties.

    (a) A person who knowingly violates a requirement of the Federal 
hazardous materials transportation laws, an order issued thereunder, 
subchapter A or C of chapter I, subtitle B, of this title, or a special 
permit or approval issued under subchapter A or C of chapter I, 
subtitle B, of this title is liable for a civil penalty of not more 
than $75,000 for each violation, except that--
    (1) The maximum civil penalty for a violation is $175,000 if the 
violation results in death, serious illness, or severe injury to any 
person, or substantial destruction of property and
    (2) A minimum $450 civil penalty applies to a violation related to 
training.
    (b) When the violation is a continuing one, each day of the 
violation constitutes a separate offense. 49 U.S.C. 5123.
    (c) The maximum and minimum civil penalties described in paragraph 
(a) of this section apply to violations occurring on or after October 
1, 2012.


0
3. In Sec.  209.105, revise the last sentence of (c) to read as 
follows:


Sec.  209.105  Notice of probable violation.

* * * * *
    (c) * * * In an amended notice, FRA may change the civil penalty 
amount proposed to be assessed up to and including the maximum penalty 
amount of $75,000 for each violation, except that if the violation 
results in death, serious illness or severe injury to any

[[Page 9847]]

person, or substantial destruction of property, FRA may change the 
penalty amount proposed to be assessed up to and including the maximum 
penalty amount of $175,000.


0
4. Amend appendix B to part 209 as follows:
0
a. Revise the second sentence of the first paragraph of the 
introductory text;
0
b. Revise the last sentence of the second paragraph of the introductory 
text;
0
c. Revise the fifth sentence of the third paragraph of the introductory 
text;
0
d. Revise the table entry for ``173.24(b)(1) and 173.24(b)(2) and 
173.24(f)(1) and 173.24(f)(1)(ii)'';
0
e. Revise the table entry for ``173.24(c)''; and
0
f. Revise footnote 2 to the table.
    The revisions read as follows:

Appendix B to Part 209--Federal Railroad Administration Guidelines for 
Initial Hazardous Materials Assessments

    * * * The guideline penalty amounts reflect the best judgment of 
the FRA Office of Safety Assurance and Compliance (RRS) and of the 
Safety Law Division of the Office of Chief Counsel (RCC) on the 
relative severity of the various violations routinely encountered by 
FRA inspectors on a scale of amounts up to the maximum $75,000 
penalty, except the maximum civil penalty is $175,000 if the 
violation results in death, serious illness or severe injury to any 
person, or substantial destruction of property, and a minimum $450 
penalty applies to a violation related to training. * * *
    * * * When a violation of the Federal hazardous material 
transportation law, an order issued thereunder, the Hazardous 
Materials Regulations or a special permit, approval, or order issued 
under those regulations results in death, serious illness or severe 
injury to any person, or substantial destruction of property, a 
maximum penalty of at least $75,000 and up to and including $175,000 
shall always be assessed initially.
    * * * In fact, FRA reserves the express authority to amend the 
NOPV to seek a penalty of up to $75,000 for each violation, and up 
to $175,000 for any violation resulting in death, serious illness or 
severe injury to any person, or substantial destruction of property, 
at any time prior to issuance of an order. * * *

Civil Penalty Assessment Guidelines

* * * * *

------------------------------------------------------------------------
                                                              Guideline
          49 CFR Section                  Description         amount \2\
------------------------------------------------------------------------
 
                              * * * * * * *
173.24(b)(1) and 173.24(b)(2) and   Securing closures: These subsections
 173.24(f)(1) and                   are the general ``no leak'' standard
 173.24(f)(1)(ii).                   for all packagings. Sec. 173.24(b)
                                     deals primarily with packaging as a
                                        whole, while Sec.   173.24(f)
                                        focuses on closures. Use Sec.
                                        173.31(d) for tank cars, when
                                         possible. Cite the sections
                                    accordingly, using both the leak/non-
                                     leak criteria and the package size
                                         considerations to reach the
                                    appropriate penalty. Any actual leak
                                      will aggravate the guideline by,
                                     typically, 50%; a leak with contact
                                    with a human being will aggravate by
                                     at least 100%, up to the maximum of
                                     $75,000, and up to $175,000 if the
                                     violation results in death, serious
                                      illness or injury or substantial
                                        destruction of property. For
                                     intermodal (IM) portable tanks and
                                     other tanks of that size range, use
                                      the tank car penalty amounts, as
                                          stated in Sec.   173.31.
                                   --Small bottle or box...        1,000
                                   --55-gallon drum........        2,500
                                   --Larger container,             5,000
                                    e.g., IBC; not portable
                                    tank or tank car..
                                       --IM portable tank, cite Sec.
                                        173.24(f) and use the penalty
                                       amounts for tank cars: Residue,
                                      generally, Sec.   173.29(a) and,
                                          loaded, Sec.   173.31(d).
                                   --Residue adhering to           5,000
                                    outside of package
                                    (i.e., portable tanks,
                                    tank cars, etc.)..
 
                              * * * * * * *
173.24(c)........................        Use of package not meeting
                                     specifications, including required
                                       stencils and markings. The most
                                      specific section for the package
                                        involved should be cited (see
                                    below). The penalty guideline should
                                       be adjusted for the size of the
                                       container. Any actual leak will
                                         aggravate the guideline by,
                                     typically, 50%; a leak with contact
                                    with a human being will aggravate by
                                     at least 100%, up to the maximum of
                                     $75,000, and up to $175,000 if the
                                     violation results in death, serious
                                      illness or injury or substantial
                                          destruction of property.
                                   --Small bottle or box...        1,000
                                   --55-gallon drum........        2,500
                                   --Larger container,             5,000
                                    e.g., IBC; not portable
                                    tank or tank car, but
                                    this section is
                                    applicable to a hopper
                                    car..
                                   For more specific sections: Tank cars-
                                      Sec.   173.31(a), portable tanks-
                                    Sec.   173.32, and IM portable tanks-
                                     Sec.  Sec.   173.32a, 173.32b, and
                                                  173.32c.
 
                              * * * * * * *
------------------------------------------------------------------------
\2\ A person who knowingly violates the hazardous material
  transportation law or a regulation, order, special permit, or approval
  issued thereunder, is subject to a civil penalty of up to $75,000 for
  each violation, except that the maximum civil penalty for a violation
  is $175,000 if the violation results in death, serious illness, or
  severe injury to any person or substantial destruction of property;
  and a minimum $450 civil penalty applies to a violation related to
  training. Each day that the violation continues is a separate offense.
  49 U.S.C. 5123; 28 U.S.C. 2461, note.



[[Page 9848]]

    Issued in Washington, DC on February 6, 2013
Joseph C. Szabo,
Administrator.
[FR Doc. 2013-03208 Filed 2-11-13; 8:45 am]
BILLING CODE 4910-06-P


